Opinion
Rehearing Denied Oct. 27, 1930
Hearing Granted by Supreme Court Nov. 24, 1930.
Appeal from Superior Court, Alameda County; E.C. Robinson, Judge.
Action by Maurice Maede, a minor, by his guardian ad litem, Alvie Maede, against the Oakland High School District of the County of Alameda, a corporation, the Board of Education of the City of Oakland, a corporation, and others. The action was dismissed as against all defendants other than those named, and, from a judgment for plaintiff, defendants named appeal.
Affirmed.
COUNSEL
Earl Warren, Dist. Atty., Frank M. Ogden, Asst. Dist. Atty., and R. Robert Hunter, Deputy Dist. Atty., all of Oakland, for appellants.
James F. Brennan, of San Francisco, John J. McMahon, of Los Angeles, and P.J. Murphy, of San Francisco, for respondent.
OPINION
LUCAS, Justice pro tem.
As stated in appellant’s opening brief in a fair and concise statement of the case, "this is an action brought by the plaintiff, Maurice Maede, a minor of the age of fifteen years, through his guardian ad litem, Alvie Maede, for damages on account of personal injuries, to wit, the loss of an eye, sustained as the result of the explosion of an oxygen gauge in the vocational training class of the Technical High School of the defendant high school district and in which class the plaintiff was a student.
"On the morning of September 6, 1928, the plaintiff, as part of the curriculum of a class in oxyacetylene welding, was with another student named John Jensen, assigned by their instructor, Joseph Petty, to braze a piece of brass; the Jensen boy being more experienced was to do the work and the plaintiff to watch the operation. Upon starting work the boys discovered that the gauge on the oxygen tank was leaking. When this was reported to Petty he instructed them to remove the gauge assembly from the tank and he went to the adjoining automobile shop to get another. At that shop he asked one L.R. Priest, the instructor, for the gauge which he (Priest) had borrowed the day before. Presumably getting that gauge, he returned to the welding class and gave it to the Jensen boy with instructions to connect it to the oxygen tank. Jensen laid the gauge on a nearby table and the plaintiff connected it to the tank. When the connection was made plaintiff turned on the pressure in the oxygen tank. Instantly the gauge blew out, the glass from its face striking plaintiff, resulting in the loss of one eye, a cut on the nose and slight cuts on the chest.
"The equipment in question consisted of a set of two gauges, each connected to a pressure regulating and reducing valve, one of which gauges was to indicate the pressure in the oxygen tank and the other to indicate the reduced pressure of the oxygen after being reduced to a workable pressure in the regulating valve. The normal pressure per inch in the oxygen tanks was about 2,000 pounds and the normal working pressure about 50 pounds. The correct gauges to register these pressures should be gauges of 3,000 pounds pressure and 50 to 400 pounds pressure, respectively.
"After the accident it was discovered that the gauge given to the boys by Petty was one registering 400 pounds only and not capable of withstanding the high pressure in the oxygen tank, which pressure when applied consequently blew out the gauge.
"Plaintiff in his amended complaint alleged that the gauge constituted a dangerous and defective condition of property, that defendants knew and had notice of such condition and negligently failed to remedy the same, bringing his allegations under the provisions of section 2 of Statutes 1923, page 675. Defendants, pursuant to stipulation, denied all of those allegations.
"The cause was tried before a jury, which returned a verdict in favor of plaintiff in the amount of $35,000 against these appellants, the action having been dismissed as against the defendant Petty before trial, and as against the other individual defendants at the close of plaintiff’s case.
"Defendants moved for a new trial upon the following grounds: (1) Insufficiency of the evidence to justify the verdict; (2) that the verdict is against the law; (3) excessive damages appearing to have been given under the influence of passion or prejudice. The motion for a new trial was denied by the court."
Defendants Oakland High School District and Board of Education of the City of Oakland (appellants herein) appeal from the judgment on the following grounds: 1. That the evidence is insufficient to sustain or justify the verdict in that (a) the evidence fails to show that the injury to plaintiff resulted from a dangerous or defective condition of the buildings, grounds, works or property of the defendant high school district; (b) that the evidence fails to show that the board of education, the governing body of defendant high school district, or any other board, officer, or person having authority to remedy the same, had notice or knowledge of the existence of any defective or dangerous condition of any buildings, grounds, works, or property of said high school district. 2. Error of the court in denying defendants’ motion for a new trial based upon (a) insufficiency of the evidence to justify the verdict, and (b) excessive damages appearing to have been given under the influence of passion and prejudice.
Issues were framed, and the case was apparently tried on the theory that recovery could be had only if plaintiff (respondent herein) brought himself within the provisions of the above-referred to statute of 1923. The material portion thereof follows:
"Sec. 2. Public liability for negligence. Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing or managing board of such county, municipality, school district, or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway, building, grounds, works or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition."
Over the subject of dangerous or defective condition of property there is little or no serious controversy. The equipment containing the gauge in question was undeniably dangerous and defective when placed to the use to which respondent put it with the full knowledge and consent and under the direction of the said Petty. The main controversy centers about the question of knowledge or notice.
It is conceded that Petty did not have actual notice, but respondent contends, and the trial court held in denying the motion for a new trial, that he had knowledge of sufficient facts to warrant the legal conclusion that he had constructive notice. This question is a fairly close one, and, while we are inclined to concur with the trial court in its conclusion thereon, it is unnecessary for the purpose of this decision to pass squarely upon this point, for in the same year (1923) that the above-mentioned statute was enacted the state Legislature just prior to such enactment amended section 1623 of the Political Code (St.1923, p. 298) to read as follows:
"Boards of school trustees, high school boards, junior college boards and boards of education are liable as such in the name of the district for salary due any teacher on contract, and for all debts contracted under the provisions of this chapter, and for any judgment against the district on account of injury to any pupil arising because of the negligence of the district or its officers or employees and they must pay any judgment for debts, liabilities or damages out of the school funds to the credit of such district, subject to the limitation on the use of said funds fixed in the constitution of the State of California; provided, that the contracts mentioned in this section shall not be made in excess of the school moneys accruing to the district and usable for the purposes of such contracts during the school year for which the contracts are made, otherwise the district shall not be held liable."
The words "and for any judgment against the district on account of injury to any pupil arising because of the negligence of the district or its officers or employees" were added by the 1923 amendment. This language, it was held in the case of Martin Ahern v. Livermore Union Joint School District of Alameda County (Cal.Sup.) 284 P. 1105, decided after the case at bar was tried, authorizes a recovery against a high school district for negligence without the necessity of the plaintiff meeting the requirements of the act of 1923 above quoted.
Since the amended complaint states facts sufficient to constitute a good cause of action for general negligence irrespective of the allegations of knowledge or notice required by said act of 1923, and since the jury by its verdict impliedly found that all these facts are true (which findings are amply supported by the evidence), it follows that respondent has fully pleaded and proven his case. The allegations of knowledge or notice required under the terms of the 1923 statute become mere surplusage in so far as an action for general negligence is concerned.
On the subject of excessive damages, the case of Morris v. Standard Oil Co., 188 Cal. 469, 205 P. 1073, 1075, seems to be controlling. There it was said:
"The question of excessive damages is one that is first addressed to the trial court. Practically, the trial court must bear the whole responsibility in every case. The power of appellate courts over excessive damages exists only when the facts are such as to suggest, at first blush, passion, prejudice, or corruption on the part of the jury."
In that case the trial judge expressed the opinion that the verdict and judgment were excessive, but denied the motion for a new trial and deliberately passed responsibility on to the upper courts. The Supreme Court, in remanding the cause for a new trial solely upon the issue of the amount of damages, merely accepted the trial court’s opinion and did what the trial court should have done in the first instance.
In the case at bar it appears that the court at one time was apparently of the opinion that the verdict was excessive, for at the time it took the motion for a new trial under submission the court said: "If I deny the motion for a new trial, and I am still of the opinion that the verdict is excessive, a new trial will be granted unless within a certain time you file a written consent to the reduction of the verdict to the amount the court may fix." After further consideration, however, the court must have reached the conclusion that the verdict was not excessive, for in denying the motion for a new trial it made no provision for a reduction of the amount thereof. Since the jury, as the exclusive judges of the value and effect of the evidence, after being fully instructed that they should not "be swayed by passion, sympathy or prejudice or any emotion in favor of or against either party," fixed the sum of $35,000 as the amount which under the law and the evidence would properly compensate plaintiff, and since the trial court, upon which rested practically the whole responsibility of determining whether under the evidence the verdict was excessive, finally concurred in the jury’s action, and since we cannot say from an examination of the record that the facts are such as to suggest at first blush, or at all, passion, prejudice, or corruption on the part of the jury, the judgment appealed from will be affirmed.
We concur: TYLER, P.J.; CASHIN, J.